DA 06-0658

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 122

KATHRYN MELOY, SWEET FLOURS 

BAKE SHOPPE, INC., CAROL SKUFCA, 

BARB HULETT, MAE WATSON

and MARGARET B. SCHRANER, 

 Plaintiffs and Appellants,

 v.

SPEEDY AUTO GLASS, INC., 

DAVE STEINEBACH, RAYMOND and

BEVERLY MURPHY, and DOES 1 through 5,

 Defendants and Appellees.

_______________________________________

RAYMOND and BEVERLY MURPHY,

 Defendants, Cross-Plaintiffs and Appellees,

 v.

SPEEDY AUTO GLASS, INC. and DAVE STEINEBACH,

 Defendants and Cross-Defendants.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark, Cause No. CDV-2004-764

Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Peter Michael Meloy, Robin A. Meguire; Meloy Trieweiler,

Helena, Montana

April 15 2008
2

For Appellees:

Richard J. Briski; Law Offices of Richard J. Briski, Helena, Montana

Submitted on Briefs: June 6, 2007

 Decided: April 15, 2008 

Filed:

__________________________________________

Clerk
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Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Kathryn Meloy, Sweet Flours Bake Shoppe, Inc. (the bakery), Carol Skufca, Barb 

Hulett, Mae Watson and Margaret B. Schraner (collectively, Sweet Flours) appeal from the 

order entered by the First Judicial District Court, Lewis and Clark County, granting summary 

judgment to defendants Raymond and Beverly Murphy, and from its later order ruling that 

Sweet Flours’ motion to alter or amend the judgment had been denied by operation of law. 

We affirm.

¶2 The restated issues on appeal are:

¶3 1. Did the District Court err in granting the Murphys summary judgment?

¶4 2. Did the District Court err in ruling that Sweet Flours’ motion to alter or amend the 

judgment had been denied by operation of law?

BACKGROUND

¶5 In 2002, the bakery and Speedy Auto Glass, Inc. (Speedy) were commercial lessees of 

a building owned by the Murphys; the businesses were separated by a common wall that 

extended as high as the framework for a drop ceiling. Meloy owned and worked in the 

bakery, and Skufca, Hulett, Watson and Schraner were bakery employees. 

¶6 In October of 2002, Speedy’s manager Dave Steinebach placed a videocamera up 

through a space in the Speedy restroom ceiling where tiles were missing, and aimed it toward 

a relatively small hole in the ceiling of the adjacent bakery employees’ restroom. Law 

enforcement officers investigated, and arrested Steinebach. He later pled guilty to the 
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misdemeanor offense of surreptitious visual observation or recording. 

¶7 In October of 2004, Sweet Flours filed a six-count complaint against the Murphys, 

Speedy and Steinebach. The only claim against the Murphys was that they caused damages 

to Sweet Flours by negligently failing to exercise reasonable care for the condition of the 

premises leased to the bakery. The Murphys answered, and also filed cross-claims not at 

issue here. 

¶8 Subsequently, the Murphys and Speedy moved for summary judgment on Sweet 

Flours’ claims. The District Court granted the Murphys’ motion and denied Speedy’s on all 

but one claim. Sweet Flours later settled with Speedy, and moved the District Court to 

certify its order granting summary judgment to the Murphys as final for purposes of appeal. 

Pursuant to M. R. Civ. P. 54(b), and at Sweet Flours’ request, the court certified the order on 

June 7, 2006.

¶9 On June 12, 2006, Sweet Flours moved to alter or amend the order granting summary 

judgment to the Murphys. On August 31, the District Court entered its order determining 

that Sweet Flours’ motion had been denied by operation of law pursuant to M. R. Civ. P. 

59(g). Sweet Flours appeals.

STANDARDS OF REVIEW

¶10 We review an order granting summary judgment de novo, using the same M. R. Civ. 

P. 56(c) criteria applied by the district court. Because summary judgment is an extreme 

remedy that should never be substituted for a trial if a material factual controversy exists, 

summary judgment should be granted only when no genuine issue of material fact exists and 
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the moving party is entitled to judgment as a matter of law. See Hajenga v. Schwein, 2007 

MT 80, ¶ 11, 336 Mont. 507, ¶ 11, 155 P.3d 1241, ¶ 11 (citations omitted). To determine the 

existence or nonexistence of a genuine issue of material fact, we look to the pleadings, 

depositions, answers to interrogatories, admissions on file and affidavits. Hajenga, ¶ 12 

(citations omitted). Although negligence actions involve questions of fact and ordinarily are 

not susceptible to summary judgment, questions of fact can be determined as a matter of law 

when reasonable minds cannot differ. Henricksen v. State, 2004 MT 20, ¶ 19, 319 Mont. 

307, ¶ 19, 84 P.3d 38, ¶ 19 (citation omitted). 

¶11 We generally review a district court’s denial of an M. R. Civ. P. 59(g) motion to 

amend a judgment for abuse of discretion. Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 27, 

304 Mont. 356, ¶ 27, 22 P.3d 631, ¶ 27 (citation omitted). When no factual issue exists 

regarding a district court’s acts in relation to the 60-day time limit in Rule 59(g), however, 

the issue of whether the court retained authority to decide the motion is a matter of law 

which we review for correctness. See Associated Press v. Crofts, 2004 MT 120, ¶¶ 12, 36-

37, 321 Mont. 193, ¶¶ 12, 36-37, 89 P.3d 971, ¶¶ 12, 36-37 (citations omitted).

DISCUSSION

¶12 1. Did the District Court err in granting the Murphys summary judgment?

¶13 Sweet Flours asserts that genuine issues of material fact exist with respect to the 

Murphys’ alleged failure to maintain the Speedy premises—particularly, the ceiling tiles in 

the Speedy restroom—and the Murphys’ alleged failure to report Steinebach’s prior illegal 

conduct to Speedy or to law enforcement. As mentioned above, however, the sole claim 
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against the Murphys in the complaint was that they failed to exercise reasonable care in 

maintaining the bakery premises. In the District Court and on appeal, Sweet Flours has 

posited that, notwithstanding this clearly stated claim, the “basis” or “gravamen” of the claim 

was something different. While the District Court addressed some of Sweet Flours’ 

contentions regarding matters that were not pled, we focus exclusively on the claim alleged 

in the complaint for reasons discussed below. 

¶14 A pleading which sets forth a claim for relief must contain a short and plain statement 

of the claim showing that the pleader is entitled to relief and a demand for judgment for the 

relief the pleader seeks. Relief in the alternative or of several different types may be 

demanded. See M. R. Civ. P. 8(a). We recently restated, in a somewhat different context, 

the fundamental precept that pleadings are intended to advance “principles of fairness and 

notice[.]” Meadow Lake Estates Assoc. v. Shoemaker, 2008 MT 41, ¶ 28, 341 Mont. 345, ¶ 

28, 178 P.3d 81, ¶ 28 (citation omitted). 

¶15 A negligence action has four elements: (1) duty, (2) breach of duty, (3) causation and 

(4) damages. Henricksen, ¶ 20 (citation omitted). The Murphys’ summary judgment motion 

was based in part on their argument regarding the extent of a landlord’s liability under 

Montana law. They asserted that no genuine issue of material fact existed with respect to 

their lack of knowledge of the camera placement and the hole in the bakery restroom ceiling. 

 In that regard, the Murphys pointed to deposition testimony and affidavits to the effect that 

they did not know of the hole in the bakery restroom or the camera installation, at least one

plaintiff did not notice the hole in the bakery restroom until after the camera was discovered, 
7

and the plaintiffs were unaware of whether the Murphys knew of that hole. In short, the 

Murphys asserted their duty of reasonable care as landlords did not encompass liability for 

all injuries to tenants on the bakery premises and, in light of their unawareness of the hole in 

the bakery restroom ceiling, no genuine issue of material fact existed about whether they 

breached a duty of reasonable care to maintain the bakery premises. We conclude the 

Murphys met their initial burden of establishing the absence of a genuine issue of material 

fact regarding a breach of duty.

¶16 In response, Sweet Flours asserted the “basis” of their claim against the Murphys was 

a failure to maintain the Speedy premises, not the bakery premises. Along similar lines, 

Sweet Flours posited that the Murphys had a duty to maintain the Speedy premises stemming 

from their lease agreement with Speedy and Raymond Murphy’s admission that he had 

previously made repairs to the building. Sweet Flours cited to no legal authority or 

document of record permitting them to set forth matters regarding the Speedy premises as a 

new “basis” for their claim, however—and, indeed, doing so squarely contradicted the 

“principles of fairness and notice that require a plaintiff to set forth the basis of a claim in a 

complaint.” See Meadow Lake Estates, ¶ 28.

¶17 Before making the above-mentioned assertions regarding the Speedy restroom, Sweet 

Flours stated “[p]laintiffs do not dispute Murphys’ statement of the . . . background of the 

case, except to the extent that Murphys’ [sic] claim they had no knowledge of the hole in the 

ceiling of the Sweet Flours Bake Shoppe’s bathroom.” This statement constituted the 

entirety of Sweet Flours’ argument in the District Court regarding the Murphys’ alleged 
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failure to exercise reasonable care in maintaining the bakery premises. 

¶18 Once a party moving for summary judgment has met the initial burden of establishing 

the absence of a genuine issue of material fact and entitlement to judgment as a matter of 

law, the burden shifts to the nonmoving party to establish with substantial evidence, as 

opposed to mere denial, speculation, or conclusory assertions, that a genuine issue of 

material fact does exist or that the moving party is not entitled to judgment as a matter of 

law. See Phelps v. Frampton, 2007 MT 263, ¶ 16, 339 Mont. 330, ¶ 16, 170 P.3d 474, ¶ 16 

(citations omitted); Hajenga, ¶ 13 (citation omitted). Here, Sweet Flours presented nothing 

more than a conclusory assertion. Therefore, we conclude Sweet Flours did not raise a 

genuine issue of material fact. 

¶19 Finally, on appeal, Sweet Flours contends the Murphys had knowledge of 

Steinebach’s alleged prior illegal conduct on the Speedy premises—namely, growing 

marijuana and borrowing money from Speedy without authorization—and failed to report 

Steinebach’s conduct to law enforcement or to Speedy. Sweet Flours’ complaint did not set 

forth a claim pertaining to the Murphys’ failure to report their alleged knowledge of prior 

illegal conduct by Steinebach. Moreover, the only arguments Sweet Flours advanced on 

summary judgment regarding the Murphys’ alleged knowledge of Steinebach’s prior illegal 

conduct pertained to whether a superseding intervening cause broke the chain of causation. 

Having determined Sweet Flours raised no genuine issue of material fact regarding the 

Murphys’ exercise of reasonable care to maintain the bakery premises, we need not reach 

any causation question here. 
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¶20 We hold the District Court did not err in granting summary judgment to the Murphys.

¶21 2. Did the District Court err in ruling that Sweet Flours’ motion to alter or

amend the judgment had been denied by operation of law?

¶22 The District Court granted M. R. Civ. P. 54(b) certification on June 7, 2006. On June

12, Sweet Flours moved to alter or amend the judgment based on a newly-discovered 

witness, Daniel Smith. Sweet Flours submitted Smith’s affidavit, dated May 18, 2006, 

which stated the owner of the building was with Smith in 2002 when Smith inadvertently 

discovered plants he believed to be marijuana. On June 30, the parties filed a stipulation to 

extend the Murphys’ time to respond “up to and including July 31, 2006 and/or the taking of 

the deposition of the affiant, Daniel Smith[.]” Smith’s deposition was taken on July 18. 

¶23 On July 31, the Murphys filed their response to the motion. On August 8, Sweet 

Flours filed a reply brief, along with a motion for filing of Smith’s deposition, stating the 

deposition “ha[d] been relied upon by both the parties in their briefs regarding Plaintiffs’ 

Motion to Alter or Amend the Judgment[.]” The District Court apparently signed the order 

authorizing the filing of Smith’s deposition on August 8, 2006, but the order was not entered 

until August 14. The Murphys filed Smith’s deposition on August 21. 

¶24 On August 31, the District Court entered its order stating Sweet Flours’ motion had 

been deemed denied by operation of law. It observed that M. R. Civ. P. 59(g) provides a 

motion to alter or amend a judgment is deemed denied if not ruled on within 60 days. The 

District Court reasoned that the 60-day period expired on August 11, 2006, and it no longer 

had authority to rule on the motion. 
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¶25 On appeal, Sweet Flours presents virtually no argument addressing M. R. Civ. P. 

59(g), and does not challenge the District Court’s reasoning that the motion was deemed 

denied by operation of law due to the expiration of the 60-day period. Sweet Flours’ 

assertions regarding the post-judgment proceedings apparently are based on the proposition 

that Smith’s testimony raised a genuine issue of material fact regarding the assertions 

mentioned above that the Murphys had knowledge of Steinebach’s prior illegal conduct—

assertions which were not pled in the complaint. Moreover, Smith’s May 18, 2006 affidavit 

predates Sweet Flours’ reply brief supporting its motion for M. R. Civ. P. 54(b) certification 

by one week, and predates the District Court’s certification order by approximately three 

weeks—indicating Sweet Flours was aware of the “newly discovered” evidence as it was 

seeking M. R. Civ. P. 54(b) certification of the order granting summary judgment to the 

Murphys as final. In any event, absent authority regarding M. R. Civ. P. 59(g)-related 

matters, Sweet Flours cannot meet its burden of establishing error, and it is not this Court’s 

obligation to develop arguments on a party’s behalf. See Seltzer v. Morton, 2007 MT 62, ¶ 

55, 336 Mont. 225, ¶ 55, 154 P.3d 561, ¶ 55 (citation omitted). We decline to address this 

issue further. 

¶26 We hold the District Court did not err in determining Sweet Flours’ motion to alter or 

amend the judgment had been denied by operation of law.

¶27 Affirmed. 

/S/ KARLA M. GRAY
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We concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

/S/ BRIAN MORRIS